Curry v. Covello ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ANTHONY DESEAN CURRY, 7 Case No. 20-cv-01140-RS (PR) Petitioner, 8 v. ORDER TO SHOW CAUSE 9 PATRICK L. COVELLO, 10 Respondent. 11 12 13 INTRODUCTION 14 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state 15 convictions and sentence. The petition for such relief is now before the Court for review 16 pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. 17 The petition states a cognizable claim. Respondent shall file a response to the 18 petition on or before October 5, 2020, unless an extension is granted. 19 The petition appears untimely. Petitioner was convicted in 2008 and the instant 20 federal petition was not filed until 2020, which is certainly outside the one-year statute of 21 limitations period for filing a federal habeas petition. See 28 U.S.C. § 2244(d)(1). 22 Respondent is directed to consider first if the petition is in fact untimely. If 23 respondent concludes that it is untimely, he may file a motion to dismiss on such 24 grounds, though he is not required to do so. 25 BACKGROUND 26 According to the petition, in 2008 a Contra Costa Superior Court jury convicted 27 petitioner of attempted murder and assault with serious bodily injury. Various sentencing 1 Petitioner was denied relief on state judicial review. 2 DISCUSSION 3 This Court may entertain a petition for writ of habeas corpus “in behalf of a person 4 in custody pursuant to the judgment of a State court only on the ground that he is in 5 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 6 § 2254(a). A district court considering an application for a writ of habeas corpus shall 7 “award the writ or issue an order directing the respondent to show cause why the writ 8 should not be granted, unless it appears from the application that the applicant or person 9 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 10 only where the allegations in the petition are vague or conclusory, palpably incredible, or 11 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 12 As grounds for federal habeas relief, petitioner claims his sentence violates his 13 federal constitutional rights. When liberally construed, these allegations state a claim for 14 relief. 15 CONCLUSION 16 1. The Clerk shall serve electronically a copy of this order upon the respondent and 17 the respondent’s attorney, the Attorney General of the State of California, at the following 18 email address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are 19 available via the Electronic Case Filing System for the Northern District of California. 20 The Clerk shall serve by mail a copy of this order on petitioner. 21 2. On or before October 5, 2020, respondent shall file with the Court and serve on 22 petitioner an answer conforming in all respects to Rule 5 of the Rules Governing Section 23 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 24 petitioner’s cognizable claims. Respondent shall file with the answer and serve on 25 petitioner a copy of all portions of the state trial record that previously have been 26 transcribed and that are relevant to a determination of the issues presented by the petition. 27 1 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 2 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 3 answer is filed. 4 4. In lieu of an answer, respondent may file, on or before October 5, 2020, a 5 motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to 6 Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, 7 petitioner shall file with the Court and serve on respondent an opposition or statement of 8 non-opposition within thirty (30) days of the date the motion is filed, and respondent shall 9 file with the Court and serve on petitioner a reply within fifteen (15) days of the date any 10 opposition is filed. 11 5. Petitioner is reminded that all communications with the Court must be served on 12 respondent by mailing a true copy of the document to respondent’s counsel. 13 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 14 Court and respondent informed of any change of address and must comply with the 15 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 16 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 17 7. Upon a showing of good cause, requests for a reasonable extension of time will 18 be granted provided they are filed on or before the deadline they seek to extend. 19 8. The filing fee has been paid. (Dkt. No. 3.) 20 IT IS SO ORDERED. 21 Dated: June _2_2_, 2020 _________________________ 22 RICHARD SEEBORG 23 United States District Judge 24 25 26 27